Citation NR: 9626580
Decision Date: 09/17/96 Archive Date: 09/26/96
DOCKET NO. 93-27 709 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to an increased rating for seronegative
arthropathy, evaluated at 20 percent.
2. Entitlement to a compensable rating for residuals of a
post-operative anterior cruciate disability in the right
knee.
3. Entitlement to a compensable rating for residuals of a
post-operative lateral meniscal tear in the left knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Crawford, Associate Counsel
INTRODUCTION
The veteran had active service from February 1981 to August
1985 and from June 1987 to January 1991.
This appeal arises from a December 1991 rating decision in
which the regional office (RO) granted entitlement to service
connection for residuals of seronegative arthropathy
evaluated at 20 percent, residuals of a post-operative
anterior cruciate deficiency in the right knee evaluated as
noncompensable, and residuals of a post-operative lateral
meniscal tear in the left knee evaluated as noncompensable.
The veteran disagreed with the foregoing assigned disability
evaluations and perfected an appeal therefrom. In January
1995, the Board of Veterans’ Appeals (Board) remanded the
case in order to obtain additional private medical records.
The Board also remanded the case in November 1995 to obtain
private medical reports and to determine whether the veteran
desired a personal hearing. No response has been received.
The case has been returned to the Board for appellate review.
REMAND
As a preliminary matter, the Board finds that the veteran’s
claim is plausible and thus well grounded within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991). See Proscelle v.
Derwinski, 2 Vet.App. 629 (1992). The Department of Veterans
Affairs (VA), therefore, has a duty to assist the veteran in
the development of facts pertinent to his claim. 38 U.S.C.A.
§ 5107(a).
In the September 1996 informal hearing presentation, the
veteran’s representative essentially argued that the veteran
is entitled to an increased evaluation because the
symptomatology associated with the service-connected
disabilities had increased in severity. He also maintained
that the veteran complained of pain in the knees.
In this regard, the Board notes that the veteran’s most
recent examinations were conducted from July to October 1991.
The VA examination did not considered any complaints of pain
in relation to limitation of motion and functional impairment
on use under the holding in DeLuca v. Brown, 8 Vet.App. 202
(1995). In DeLuca, the United States Court of Veterans
Appeals (Court) held that functional impairment which
interferes with lifestyle and employment activities and is
supported by adequate pathology is recognized as resulting in
disability. Id.
Considering the foregoing, the Board is of the opinion that
in order to adequately evaluate the veteran’s above-noted
service-connected disabilities, a thorough and
contemporaneous VA examination is desirable. VA has a duty
to assist the veteran in the development of facts pertinent
to his claim. The fulfillment of the VA’s duty to assist the
veteran includes providing the veteran with a thorough and
contemporaneous medical examination where indicated by the
facts and circumstances of an individual case. Littke v.
Derwinski, 1 Vet.App. 90, 92 (1990).
The Board notes that a claim for an increased evaluation
shall be denied when entitlement to the benefit cannot be
established or confirmed without a current VA examination or
reexamination and a claimant, without good cause, fails to
report for such examination or reexamination. Examples of
good cause include, but are not limited to, the illness or
hospitalization of the claimant or death of an immediate
family member. See 38 C.F.R. § 3.655 (1995).
In order to fully assist the veteran in the development of
his case and extend to the veteran every equitable
consideration, this case is REMANDED for the following:
1. The RO should obtain copies of any
records of treatment of the veteran by
the VA since 1991. It is noted that the
veteran has previously been seen at the
Loma Linda VAMC; however, the RO should
check with all local VA facilities for
any additional records.
2. The veteran should be asked to
identify any physicians and medical
facilities from which he has been treated
or evaluated for his service-connected
disabilities since 1991. After any
further necessary information and
authorization are obtained from the
veteran, the RO should obtain copies of
pertinent medical records. Any records
obtained should be incorporated into the
veteran’s claims folder.
3. Thereafter, the RO should schedule a
special orthopedic examination to
separately identify the severity of the
veteran’s residuals of seronegative
arthropathy, residuals of a post-
operative anterior cruciate deficiency in
the right knee, and residuals of a post-
operative lateral meniscal tear in the
left knee. The veteran and his
representative should be notified of the
date, time, and location of the VA
examination(s), and all correspondence
should be documented. Such
correspondence should also set forth the
provisions of 38 C.F.R. § 3.655,
regarding the consequences of failure to
report for an examination. All indicated
studies should be conducted and all
findings should be reported in detail.
The range of motion of the affected
joints should be recorded, and the
examiner should comment on the normal
range of motion for such joints. The
examination report should include a full
description of the veteran’s symptoms,
clinical findings, and associated
functional impairment. In addressing
functional and industrial impairment, the
examiner is requested to provide
responses to the following:
(a) Does the diagnosed disorder cause
weakened movement, excess fatigability,
and incoordination? If so, the examiner
should comment on the severity of these
manifestations and their effect on range
of motion and, to the extent possible,
their effect on the ability of the
veteran to perform average employment in
a civil occupation (without consideration
of age). If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
(b) With respect to any subjective
complaints of pain, the examiner is
requested to comment specifically on
whether pain is visibly manifested on
movement of the joint; the presence or
absence of changes in condition and
disuse due to the service-connected
disabilities; or the presence or absence
of any other objective manifestation that
would demonstrate disuse or functional
impairment due to pain attributable to
the disabilities. The examiner should
comment on the veteran’s complaint of
pain and should provide an opinion
regarding the degree to which the pain
claimed by the veteran could limit
functional ability, including during any
flare-ups or when the joint is used
repeatedly over a period of time.
Copies of pertinent documents from the
veteran’s claims folder should be
provided to the examiner for review prior
to the examination.
3. The RO should contact the veteran and
his representative to determine whether
he still desires a personal hearing. If
so, the RO should take any appropriate
action.
4. The RO should then review the
veteran’s claims and should fully address
the issue of entitlement to an increased
rating in accordance with the provisions
of 38 C.F.R. Parts 3 and 4 (1995),
including Schafrath v. Derwinski,
1 Vet.App. 589 (1991). All pertinent
law, regulations, and Court decisions
should be considered. If the veteran’s
claim remains in a denied status, he and
his representative should be provided
with a supplemental statement of the
case, which includes all pertinent law
and regulations, and a full discussion of
action taken on the veteran’s claim. The
applicable response time should be
allowed.
The case should then be returned to the Board, if in order,
after compliance with customary appellate procedures. No
action is required of the veteran until he is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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